Making a Difference with Anonymous Political Speech

May 10, 2018 • By Joe Albanese

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Last week, the Tampa Bay Times published a detailed article about a group called “The Collective PAC,” whose mission is to “fix the challenge of African American underrepresentation in elected seats of power throughout our nation.” The Times outlines how this group is “bankrolling” Andrew Gillum, a black candidate for Florida governor in the Democratic primaries, by donating to political action committees (PACs) affiliated with Gillum’s campaign.

Collective PAC has several affiliated organizations under its umbrella: a PAC, a super PAC, and a 501(c)(4) nonprofit advocacy organization. The Times takes issue with the fact that the 501(c)(4) organization is donating the most of those three groups. In the author’s words: the candidate is “lean[ing] on an opaque fundraiser,” because 501(c)(4) groups, unlike PACs and super PACs, are not legally required to publicize the names, addresses, employers, and occupations of their general donors. For his part, Collective PAC’s Founder and Executive Director, Quentin James, has said that the 501(c)(4) is simply donating more because it has attracted more donations than the other groups under the Collective PAC umbrella.

Although the overwhelming majority of political donations and spending are linked to entities other than 501(c)(4)s, there are a few reasons why donors might opt for giving to such groups rather than to a PAC or super PAC. For one, it is possible that the donors to the 501(c)(4) support Collective PAC for reasons separate from electoral politics. Under the law, 501(c)(4)s are allowed to spend money to support candidates as long as it is not their primary function; otherwise, they must register as a political committee. The fact that such organizations have a non-political major purpose is the precise reason why they are not required to disclose their donors the same way as those who give to, say, candidate campaigns are publicly disclosed.

Some donors may intend to support the political activities of a 501(c)(4), in which case, they can either earmark their donation for those activities and leave themselves open to public disclosure, or give a general donation that funds the organization’s non-political activities too. For these individuals, giving to a 501(c)(4) may be preferable to giving to a PAC. The burdensome regulations and contribution limits governing PACs could make them less desirable tools for political campaigning, and thus a less efficient recipient of a donation. At the same time, giving to a (c)(4) could be preferable to giving to a super PAC since such groups work to accomplish non-electoral goals as well.

Another factor that explains donations to 501(c)(4)s is that many contributors may want to have an impact on politics without having their personal information publicized. At a time when Americans increasingly face harassmentandreprisal for expressing viewpoints that others find disagreeable, this is an eminently reasonable desire. Anonymous speech has a long tradition in American history. Modern Supreme Court jurisprudence has formally acknowledged the role of anonymous speech and free association as part of the First Amendment’s protections. In the landmark case, NAACP v. Alabama, the state of Alabama was forbidden from compelling the disclosure of the names and addresses of NAACP members in the state, due to members’ very serious fears of reprisal. Yet to critics of 501(c)(4)s, who call this type of spending “dark money,” this is tantamount to allowing wealthy donors to secretly influence elections.

Many Americans want to participate in campaigns, but don’t have time to volunteer or dedicate their careers to influencing politics – like professional activists and journalists – so they turn to donating money instead. But in our increasingly polarized society, many Americans may fear harassment or negative consequences when their personal information is posted online alongside the candidates and advocacy groups they support. The fear of disclosure can even lead people to decide it is not worthwhile to participate in politics at all. This “chilling effect” on free speech and civic discourse is why the Supreme Court acknowledged the importance of anonymous speech to begin with. Americans have the right to express a viewpoint without having their personal lives invaded.

Disclosure laws are theoretically meant to serve the purpose of telling the public who supports whom, in order to better inform their votes. However, this optimistic ideal is rarely met. Information yielded from public disclosure is often unintentionally (or intentionally) misused by activists pushing misleading information, or uninformed journalists who do botch crucial details (for example, suggesting that politicians receive donations from an “industry” rather than individuals employed within an industry).

Nor would forcing disclosure of donors to nonprofits like Collective PAC do much to inform voters or improve the quality of political discourse. Disclosure already exists for almost all political spending, and those groups that are not required to disclose are necessarily limited in their scope by tax laws. And despite Collective PAC’s donors not being individually known, current disclosure laws have already managed to identify the organization’s role in supporting Gillum’s campaign and provide readers with a good amount of background information as to its mission and leadership. Voters can already judge for themselves whether Collective PAC’s role in the race is a pivotal voting issue.

The Times article also quotes another candidate endorsed by Collective PAC, former Massachusetts gubernatorial candidate Setti Warren. In late April, Warren published a Facebook statement after pulling out of the race due to fundraising problems, saying that “at the end of the day, grassroots campaigns cost money and it just wasn’t there for us.” Contrast this statement with the success of Collective PAC – according to James, the PAC’s Executive Director, “The Collective has received over 13,000 individual contributions from over 6,000 people. We are a grassroots led and funded organization.” This contrast highlights an important lesson: allowing more avenues for political speech can make the difference between hearing new viewpoints or seeing them flicker out.

Gillum may have found more success than Warren because of stricter campaign finance laws in Massachusetts compared to Florida. Perhaps, as James says, more people simply see Florida as a significant battleground for national politics. Regardless, for those who support Collective PAC’s mission of promoting black leaders – or for those who support numerous other causes – making it easier to participate in political debate without fear of harassment can make a significant impact. Americans should welcome this sort of engagement instead of insinuating bad motives on those who choose to retain their privacy.